Why mortgage costs can be claimed back
In mortgages signed before Spain’s mortgage lending law, the Ley 5/2019, reguladora de los contratos de crédito inmobiliario, it was common for the deed to say that the customer paid all the costs. The Spanish Supreme Court (Tribunal Supremo) has declared that clause unfair when it was imposed on a consumer, and has gradually set out which share of each cost belongs to the bank. What the bank should have paid and you paid instead is what you claim, with interest from the date you paid it.
The split is not the same for every cost or for every date. That is why I need to see your invoices: the amount you can recover depends on what you paid and when you signed.
Stamp duty (impuesto de actos jurídicos documentados) follows different rules, because it is a tax and not a cost that the bank passed on to you by contract. I explain this in the article on stamp duty (AJD).
Can you claim if the mortgage is old or already paid off?
Often, yes. What you claim are the costs or amounts you paid under a void clause, not the mortgage itself. So you can claim even if you have sold the house, paid off the loan or changed bank.
The key question is the time limit. In recent years the Court of Justice of the European Union and the Spanish Supreme Court have clarified when it starts to run, and it is not always from the signing date. In general, time does not run while you could not have known that the clause was unfair. Even so, the dates in each case need checking before treating a claim as lost or as certain.
If you signed an agreement with the bank
Some banks offered customers a reduction or removal of the floor clause (cláusula suelo, a minimum interest rate) in exchange for waiving any claim. Those agreements are not void in themselves, but the courts require them to have been transparent: you must have understood what you were signing and what you were giving up. If you signed an amendment (novación) or a private document of this kind, bring it to the consultation and I will study it.
If the bank is claiming against you
If you miss several payments, the bank can call in the whole mortgage (vencimiento anticipado) and claim the entire debt from you. Law 5/2019 sets how many unpaid instalments are needed and requires the bank to demand payment from you first. If enforcement proceedings (ejecución hipotecaria) have already started, the deadlines to object are very short. In the objection you can argue, among other things, that clauses in the deed itself are unfair. Do not wait to see what happens: get advice as soon as you receive the notice.
What documents I need
- The mortgage loan deed and, if there were any, the deeds of amendment, transfer to another bank (subrogación) or cancellation.
- The notary, Land Registry, administrative agency (gestoría) and valuation invoices from the signing.
- The mortgage payment receipts or a bank certificate showing the instalments paid.
- The policies for any insurance you took out with the mortgage.
If you are missing any, that is fine: many can be requested from the bank, the notary or the Land Registry and I explain how. You can send them to me through the online consultation. If your problem is with another bank product, see the bank claims page.
